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Judges diverge on repeat DUIs

Kevin VaughanThe Denver Post

Posted:
08/09/2009 01:00:00 AM MDT

Updated:
08/10/2009 07:47:04 AM MDT

Gilpin County Judge Frederic Rodgers explains charges during an arraignment. A liaison for the American Bar
Association, he lectures other judges about handling DUI cases. He says some sentencing disparities can be attributed
to do you see the same faces again, and what works or what doesn t work? (Joe Amon, The Denver Post)

Across Colorado, repeat drunken drivers pay vastly different prices for their crimes — despite a state law that is supposed to mean jail for all of them.

An analysis of four years of sentencing data by The Denver Post found cases of people with as many as seven drunken-driving arrests who avoided going to jail and were allowed, instead, to serve alternative sentences. Sometimes that meant hanging out at home — a reality that perplexes Adams County District Attorney Don Quick.

"You shouldn't get grounded for your seventh DUI," Quick said.

The Post analysis of data compiled by the Office of the State Court Administrator between 2005 and 2008 also found an Arapahoe County judge who issued jail sentences in more than 90 percent of those repeat cases and judges in neighboring Adams County who locked up defendants in similar cases less than 40 percent of the time.

The discrepancy, according to judges, lawyers and other experts, is the result of the collision between judicial philosophy and legal interpretation against the overriding reality of full jails.

"The thing about jail, the sheriffs don't have any space," said Denver County Judge Raymond Satter.

Satter also said that handing out an alternative sentence gives him the chance to order treatment that is likely to be more effective than what an inmate would get behind bars.

Quick, for one, was not swayed by that argument.

"I think it's a treatment issue when they get drunk and watch TV at home," Quick said. "When they drive, it's a criminal issue.

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The Post analysis found that how those crimes are dealt with by different judges varies widely:

• Arapahoe County Judge Dana Murray, according to the data, was the toughest DUI judge in Colorado over that four-year span, sentencing repeat offenders to jail 98 percent of the time.

• In Adams County, Judges Dianna Roybal and Robert Doyle issued jail sentences in roughly one-third of the repeat-offender cases they handled.

Gilpin County Judge Frederic Rodgers explains charges during an arraignment. A liaison for the American Bar Association, he lectures other judges about handling DUI cases. He says some sentencing disparities can be attributed to "do you see the same faces again, and what works or what doesn't work?"
(Joe Amon, The Denver Post
)

Two other Adams County judges had similar sentencing records, but a majority of the cases included a suspended jail term — which some judges believe means tougher consequences if the person later violates probation.

• In Denver County Court, which is not part of the state's database, Satter estimated that 98 percent of the defendants coming to his courtroom for a second drunken-driving offense get sentenced to in-home detention.

• Just as jail time varied widely, so did the fines imposed on drunken drivers. A random check of 2008 cases handled by Murray, for example, found that she imposed an average of $1,266 in fines and costs in each case. A check of a similar number of cases handled by Doyle and Roybal showed that they imposed an average of $597 in fines and costs in each case last year.

• Some counties do not use statutes designed to crack down on repeat offenders and drivers with especially high blood-alcohol levels — laws that would automatically mean tougher sentences.

"Judges, like the rest of us, are human beings," said David Timken of the Center for Impaired Driving Research and Evaluation in Boulder. "They have their own ideas and their own philosophies about things. And I think in most cases it's just a difference of opinion on how to best handle these kinds of situations."

What the state laws say

More than 30,000 people are busted each year in Colorado for drinking and driving.

The state has multiple laws that govern drinking and driving. A motorist with a blood-alcohol level of 0.05 percent is presumed to be impaired. A motorist with a blood-alcohol level of 0.08 percent is presumed to be intoxicated.

Colorado law imposes mandatory minimum jail terms for repeat offenders — five days for a second conviction of driving while ability impaired, 10 days for driving while under the influence. The maximum sentence is one year in jail.

But a separate Colorado law allows judges to hand down alternative sentences — including in-home detention. The alternative-sentencing laws, which apply to many different offenses, can be less costly than jail and relieve overcrowding.

The analysis, part of an ongoing examination of drunken driving in Colorado by The Post, found that many judges use the alternative-sentencing law liberally.

In Boulder County, three-time DUI offenders can go to a new "integrated treatment" court instead of jail.

The program combines work release and judicial supervision with extensive alcohol education and treatment.

Stan Garnett, the Boulder district attorney, said he supports the model and thinks "it does a pretty good job of helping people come to terms with their substance use" — but he also worries that it won't stop someone determined to keep drinking from getting behind the wheel.

Defense lawyers who specialize in DUI cases quickly come to understand the disparity.

Take Judge Murray, for example.

She declined a request for an interview from The Post but has earned a reputation — both on paper and among attorneys — for her tough sentences.

During the four years of data examined by The Post, she handled 420 cases involving repeat drunken drivers — and sent 411 of them to jail, according to the state's figures, but a spot check of her cases found a discrepancy in the sentence in one of those cases. One lawyer who has appeared before her said outright that Murray is tough on repeat offenders.

He knows a client with a third offense means an even tougher sentence.

"I have a world of respect for Judge Murray," he said, but "on a third offense, she gives you a year in jail. That is dramatically different from most judges."

"A big gray area"

By contrast, he said, one Adams County judge "universally gives in-home detention" on a second DUI — unless you go to trial and lose.

Fife declined to discuss which Adams County judge he was referring to.

Chris Cessna, another defense lawyer who takes DUI cases, sees some consistency in sentencing on first and third DUI offenses. But on a second offense, "there is big gray area where judges see things differently."

"You have one judge that will give in-home detention," he said. "In the next courtroom in the same hallway, the judge will give 30 days in jail."

In Adams County, Judge Jeffrey Romeo sentenced repeat offenders to jail 83 percent of the time, according to the state's database.

Roybal, working in the same courthouse, did it in 38 percent of her cases, and Doyle did it in 33 percent of his.

All three judges declined to comment. But Roybal and Doyle both have used alternative sentences for people who have racked up numerous drunken-driving arrests.

In 2007, Clifton Johnson ran a red light, crashed into a truck and then fled the scene. It was his seventh drinking-and-driving arrest — court records show he was busted in 1972, 1974, 1975, twice in 1978 and again in 1996. Johnson also had been arrested on felony and misdemeanor drug charges and as a fugitive from justice, according to court and law enforcement records.

In Roybal's courtroom this year, Johnson got a break. In a state with no felony DUI law, he pleaded guilty to driving drunk for the second time. Roybal sentenced him in March to a year of in-home detention.

In June, Johnson disconnected the electronic-monitoring device from his home telephone, called his case manager and said he wanted to finish the rest of his sentence in jail. On July 27, Roybal gave him credit for 57 days of in-home detention and issued a warrant for his arrest.

Thursday, at his Aurora home, the 63-year-old defendant said he suffers from devastating effects of post-traumatic stress disorder dating to his service in the Vietnam War.

"I'm having nightmares, flashbacks, hearing voices, pain in the back of my head that won't go away," Johnson said. "I'm under a doctor's care now."

He said he planned to see his doctor the next day and ask for a letter to the court explaining his condition.

"Monday, I'm going to turn myself in and see what the judge does to me," he said.

Confronting repeat offenders

In a matter of weeks in early 2007, Carlos Sanders quickly racked up three DUI arrests — bringing his total to four. Two of them occurred in Adams County, and in both, his blood-alcohol level was above 0.20 percent.

Sanders had a long criminal record before those arrests, including attempted-murder and felony-assault charges, and he had served time on a shooting. He fought the charges, and after a hung jury ended his first trial, he was convicted by a new jury and scheduled for sentencing in April 2008.

Sanders didn't show up. He was missing for five months until police arrested him on another charge in Arapahoe County, where he sat in jail for three months.

When he returned to Adams County, Sanders got a break in court. Doyle sentenced him to 90 days on the two DUI charges, with credit for 88 days served. He was out the next day.

Sanders told The Post he felt police were targeting him, particularly because of his criminal arrests.

"I felt like it was a harassment thing," he said. "I was sitting in a car. I wasn't even moving. I told the police someone was coming out to drive for me."

In court, "I did catch a break," he said, but perhaps the judge took the circumstances of his arrests into consideration.

"I did go to jail for it," he said.

Raymond Castillo went to Adams County court on his fifth DUI case this year. There he faced Emil Rinaldi, a visiting county court judge, who sentenced him in April to a year in jail. Rinaldi had been filling in for Doyle. When Doyle returned, he found appeals to show Castillo some mercy.

Gary Merlino, his union representative at the federal Department of Commerce, provided a doctor's note that said "Mr. Castillo has coronary artery disease . . . house arrest would be desirable."

He also wrote that Castillo was a Vietnam War veteran who suffered from severe post-traumatic stress disorder, a condition that commonly leads to alcohol abuse, and that a jail term could cost Castillo his job and his pension one year short of retirement.

Castillo's fiancee provided an affidavit swearing that Castillo had stopped drinking and driving, attends church every Sunday and takes 10 daily medicines for various ailments. A counselor cited Castillo's "considerable progress in his ability to cope with stress in healthy, adaptive ways."

Doyle canceled the jail term, allowing him to serve his sentence for his fifth DUI at home, with an alcohol-monitoring device.

Quick, the district attorney in Adams County, said he worries about the number of repeat drunken drivers who come to court in his county and leave without spending a day in jail.

"In general terms, we don't think home detention is appropriate for someone who has picked up his third or fourth or fifth or sixth or even seventh DUI," he said.

Jail space vs. appropriate penalties

In Denver, Satter said the alternative sentences are just a fact of life for two-time offenders.

After that, however, "you're starting to talk about jail."

"When you get up to the fourth or fifth or sixth, they're looking at substantial jail," Satter said.

Although Denver County Court administrators have not provided full data, Satter estimated that he uses in-home detention in 98 percent of the second-offense DUI cases he sees.

One reason: a lack of jail space.

According to the city's corrections director and undersheriff, Bill Lovingier, the Denver County Jail, designed for a maximum of 1,634 inmates, averaged 2,194 a day in 2006, 2,118 a day in 2007, and 2,009 last year. Through May, it was on pace to average 2,003 inmates a day this year, Lovingier said.

With full jails, Satter said, he thinks in-home detention offers a chance to impose more extensive alcohol therapy than is offered in jail.

Therapy can work, Satter said, "if we can get them to complete classes."

"But you know," he added, "this is a horrible addiction, a horrible addiction."

Gilpin County Judge Frederic Rodgers handles drunken-driving cases in court and frequently lectures other jurists about them in his side role as an American Bar Association liaison in a six-state region. Part of that involves lecturing on drunken driving to judges in other states.

"As far as the disparity," Rodgers said, "I think that stems from the judge's own empirical research and the data that the judge gleans from serving on his or her cases — do you see the same faces again, and what works or what doesn't work?"

Rodgers said he and all judges have the same nightmare: that they give probation to a drunken driver, then open the newspaper one day and see that the person has killed someone.

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